Mihailovic v The Queen

[1993] HCATrans 295

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IN THE HIGH COURT OF AUSTRALIA

Office of the Registry

Sydney No S227 of 1992

B e t w e e n -

ALEX MIHAILOVIC

Applicant

and

THE QUEEN

Respondent

Application for special leave
to appeal

MASON CJ DAWSON J TOOHEY J

Mihailovic 1 8/10/93

TRANSCRIPT OF PROCEEDINGS

AT SYDNEY ON FRIDAY, 8 OCTOBER 1993, AT 11.30 AM

Copyright in the High Court of Australia

MR L.R.H. LORD, OC:  May it please the Court, I appear with

my learned friends, MR I.H. McCLINTOCK and

MR S.J. ODGERS, for the applicant. (instructed by

Simpson & Harrison)

MR K. MASON, QC, Solicitor-General for New South Wales: I

appear with MR P.J.P. POWER, for the respondent.

(instructed by S.E. O'Connor, Solicitor for Public

Prosecutions (New South Wales))

MASON CJ:	Mr Lord.
MR LORD:	Your Honour, this application differs, in broad

principle, the application in Morgan because, what

I might call the indictment point, is not available

to - - -

MASON CJ:	No.
MR LORD:	Your Honours, may I begin by adopting, so far as

they are applicable to Mihailovic, the submissions

made both in writing and orally by my learned

friend, Mr James, that is on the point which is

common to both applications, Your Honours.

The basis of this application is unfairness,

unfairness to Mihailovic in the context of the
history of the matter, and if I may take a moment.

There were eight defendants in the magistrate's

court all charged with murder. One pleaded guilty

to manslaughter under statutory provisions in that
court, and that plea was accepted by the Crown.

The other seven were committed for trial, not on the original charge of murder, but on the lesser

charge of manslaughter. I assume Your Honours have

read the affidavits of Mr Harrison and Mr Newham at

page 54 and 56 respectively of the Mihailovic's

book.

MASON CJ: Yes, we have.

MR LORD:  Because part of the chronology is set out in those

affidavits, Your Honours. Subsequently, in

circumstances unknown to Mihailovic's

representative, four of the accused were indicted

and arraigned and pleaded, one way or the other, on

that arraignment. Three pleaded guilty to

manslaughter, which was the only charge in that

indictment, and the only charge on which they were

arraigned, and Morgan pleaded not guilty. The

Crown, Your Honours, never gave Mihailovic any

opportunity of pleading guilty to the committal

charge, and indeed - - -

TOOHEY J:  Is that right, Mr Lord? I rather thought that

the Crown had sent a copy of a draft indictment to

Mihailovic 2 8/10/93

the remaining seven after the one had pleaded

guilty at the committal proceeding - - -

MR LORD:	Yes, Your Honour.
TOOHEY J:	- - - inviting them to plead guilty to, or at

least offering a plea of guilty to manslaughter.

MR LORD:  The offer, Your Honour, would be implicit. The

offer would be, "This is the draft indictment and

if you want to plead guilty to it let us know."

But, Your Honour will also have gleaned from the

affidavit that whilst the committal was in May, and
an application for legal aid was made shortly

afterwards, it was not granted until September.

Whether the solicitors could or should have done

anything further may be another matter, but so far as Mihailovic was concerned, that was the position as it stood then. Your Honour is suggesting, as I understand it, that having received the draft

indictment, Mihailovic, or those acting for him,

should have said, "Well, here is this indictment,

we will get in touch with the Crown".

TOOHEY J: Well, not necessarily "should have". I was just

querying the way in which you expressed the factual

situation.

MR LORD:  I might put it, perhaps, in another way, if

Your Honour pleases. Mihailovic and those acting

for him were never told that the four were to be
indicted and arraigned on an indictment for

manslaughter on the day in which it happened.

According to the affidavit, he and those acting for

him were unaware that that was taking place.

DAWSON J: But, the fact that they were indicates that they accepted the implicit offer contained in the draft

indictment?

MR LORD: It would seem so. But, Your Honour, none the

less, it was perfectly open to the Crown, at any

time, to have said, "Well, four of the eight have

pleaded guilty to manslaughter, what do you want to

do about it?" That is the short point of it, if

Your Honour pleases, and that was the matter, of

course, to which His Honour the trial judge

referred in his remarks of 14 February:

I have a personal feeling that it is

monstrously unfair that of the eight, four

have been dealt with for manslaughter, while

these risk a conviction for murder. If the

Crown elects to continue with the trial as it

is, it is entitled to do so and I shall have

nothing to say about that; it will in no way

affect the conduct of the trial. However, I

Mihailovic

would like it to be brought to the notice of

the DPP that I entertain the feeling that what

is happening is unfair. I would like

consideration to be given to the question

whether these accused should -

not -

be given a further opportunity to plead to

manslaughter.

And, Your Honours, subject to the implicit

invitation to plead, the expression "a further

opportunity" does not apply to the applicant,

Mihailovic. The only opportunity he had was the

implicit invitation to be read from the forwarding

of the draft indictment.

TOOHEY J:  Mr Lord, in Mihailovic's case, was there any

formal step taken before the trial judge with a

view to having the matter proceed only on a charge

of manslaughter?

MR LORD:  No formal step, Your Honour.

TOOHEY J: There was a motion in Morgan's case.

MR LORD:  Yes, Your Honour, and subsequently - that motion

was based, as I recall it on the - well, I call the

indictment point, but following the remarks by

His Honour in Chambers and the response of the DPP

to those remarks, a short application was made;

short in the sense that His Honour had indicted, as

I have read to Your Honours, that the matter would

proceed, and in that application we all joined.

TOOHEY J:  Was that an oral application?

MR LORD: That was an oral application, Your Honour, and I

could also indicate, Your Honour, if I may, because

this is referred to in the judgment of the Court of

Criminal Appeal, I was briefed by telephone

originally on a day in January - and that date

appears in the affidavit of Mr Newham - and on that

same day I canvassed with the Crown prosecutor the

possibility of a plea to manslaughter which he

indicated he was not prepared to accept.

TOOHEY J:  Can I just ask you one more question on this

point? Does the record, that is the material

before us, refer to the oral application?

MR LORD:  No, Your Honour. Dredging not a most imperfect

memory, Your Honour, it was made, really, as I

recall it, as a matter of formality in the light of

indications by His Honour, the trial judge, that

whether anything should be done or not was a matter

Mihailovic 8/10/93

for the DPP and that he had no power to go further

than he had in making his views known to the DPP.

TOOHEY J:	Does that suggest that it was made in chambers?
MR LORD:	No, Your Honour, my recollection is it was made in

open court.

TOOHEY J: Yes, thank you.

MR LORD: But, as I say, it was only a matter of a few words

and I doubt that it was ever the subject of a

considered judgment, or that His Honour gave full

reasons at any time. Perhaps my learned friend,

Mr Mcclintock, would be better informed on that

aspect of it, Your Honour, or his memory would

perhaps be better than mine.

Of course, Your Honour, in our submission, the question of unfairness flows both to the matters of the cross-examination of the two witness

co-offenders and to sentence itself, because

throughout the Crown case, Your Honour, the Crown

argued joint enterprise. The Crown was never able

to point with any certainty to which one of
the co-offenders inflicted the fatal injury, and in

the absence of certain matters, the Crown was never

able to establish, with clarity, precisely what

happened in the events of that night, particularly

the assault upon the deceased.

The peril of it, in our submission,

Your Honour - one of the perils - is that the

witness co-offenders gave evidence of the

participation of all eight, in the death of the

deceased.	The jury knew that they had been dealt
with in relation to the death or the homicide.	The

accused were on trial before that jury for murder

and it is our submission, Your Honour, that the

natural and obvious inference that the jury would

draw would be that the witnesses themselves had

pleaded guilty to murder. True enough, they were	directed that they were not to speculate but even
so, Your Honour, it is no speculation to say,
"Well, it is on their evidence that the Crown seeks
to establish murder".

They gave evidence of the conduct of all

eight, and it follows, the jury may say, quite

clearly, that the offence to which they had pleaded

guilty was the offence on which the others were

being tried, and the Crown asking that they be

convicted on the evidence of the other two. If

that were the jury's view, Your Honours, it does

not indicate to them, in any circumstances, the

full extent of the concessions, or allowances, made

by the Crown and in accordance with law of the

Mihailovic 8/10/93

courts, in regard to the sentences to be passed

upon them.

Mihailovic was sentenced to a minimum term of

10 years. The manslaughter offenders - those who

pleaded - were sentenced, in round figures, to five

years minimum term, on facts, Your Honour, which

were identical, for all practical purposes - the

objective facts are identical - in each case.	Our
submission is that the jury interpreted and
assessed the credibility of the witnesses on a
false premise, and it is as short as that.

From that, if the Court pleases, close also

what is, on the face of it, a disparity of sentence

because whilst, for example, Mihailovic was

sentenced because he was guilty of one offence, and

the two witnesses were sentenced because they had

pleaded guilty to a lesser offence, their factual

culpability was, for all practical purposes, the

same. Your Honours, it does come back, and I do

not know that I could usefully add anything

further, to the fact that some seven months after

committal for manslaughter, Mihailovic is informed

by letter that he will now be - and after a trial

had been fixed for manslaughter, Your Honour - - -

MASON CJ:	We are familiar with the history of it.
MR LORD: Yes.	It is our submission, Your Honour, that the

whole of the circumstances demonstrate what

His Honour the trial judge called "a monstrous

unfairness". It is submitted that that expression

is no exaggeration, and that the unfairness is such

that an appellant court would intervene to remedy

that unfairness.

So far as Hui Chi-Ming is concerned,

Your Honours, there are some differences. In that

case reference is made in various parts of the

judgments or speeches to the fact that there was a

principal offender, and there was no principal

offender in this case. But, most particularly,

Your Honours, in Hui Chi-Ming the appellant was

given the opportunity to plead guilty to

manslaughter, expressly, it would seem from the

terms of the judgments, and chose instead to go to

stand his chance on a trial for murder.

Unless there is some other matter which

Your Honours feel I may be able to be of

assistance -

MASON CJ: Yes, thank you Mr Lord. Mr Solicitor.

MR MASON:  Your Honours, it would not be either correct or

fair for this application to proceed on the basis

Mihailovic 6 8/10/93

of this later application for a stay to which

reference has been made. If it is suggested that

it was refused because of a belief the judge did

not have power to do it, that that is a suggestion

which we are not in a position to agree to or rebut

simply because it has never been part of the case

in the Court of Criminal Appeal, or the application here. The attack has also been upon the refusal to grant the relief on 28 or 29 January in the

judgment that you have.

With the benefit of hindsight, Your Honours,

the whole matter really was a question of proof

rather than of relative culpability. There were

differences and the sentencing process reflected
that but, as the Court of Criminal Appeal put it,

the facts as emerging in the later trial showed

that probably that the whole eight, or at least all

but the one who was found not guilty of murder in

the later trial, were guilty of murder and could

have been charged and convicted of murder.

References made to that at the top of page 21 - I

am looking at the Mihailovic application book -

and page 37, lines 5 to 12:

The real problem may be, not that the latter

were dealt with too severely, but that the

former were dealt with too leniently.

The Court of Criminal Appeal, at the top of

page 21, noted that:

it was reasonably open to a jury to convict

Howard, Mihailovic, and Morgan of murder.

The particular details of the involvement of

Mihailovic appear at 38 and 39 and 45 and they show

that it was eminently open to the jury to have

inferred that the intent was to inflict grievous

bodily harm on his part.

In our submission, there can be no relevant unfairness, if that is the correct expression to
use, at all in those circumstances.	To say that

there is unfairness must involve the corollary that

if the Crown grants an immunity to one witness in

order to get that person's evidence then the

benefit of that immunity must flow through to those

who are otherwise lawfully convicted by his or her

evidence.

The only other point I would wish to make

relates to a passage at page 32 of the application
book. My learned friend, Mr Lord, said that the

jury could well have believed, and probably did,

that Jong and French, who gave Crown evidence, were

guilty of murder. The direction that is referred

Mihailovic 8/10/93

to at page 32, which was not the subject of any

comment or appeal, made it very plain that there

were a range of possible verdicts, that they were

just not to speculate, and it cannot, in our

submission, be suggested that the jury were left in

a position that there was a likelihood, or a

belief, that they had been convicted of murder.

They were simply told it is not relevant to know

more than that they had been convicted and

sentenced relating to the death.

MASON CJ:	Thank you, Mr Solicitor. Do you wish to say anything in reply~Mr Lord?
MR LORD:	Only to say this, if Your Honours please. At

page 37 of the application book, in the passage

referred to by my learned friend, the Solicitor:

The unfairness (or, it may be argued,

oppression) involved lies in the comparison

between the outcome of the processes of

criminal justice in relation to those

offenders who got in early with pleas of

guilty, and those who decided (at their

ultimate cost) to take a harder line.

We would submit, Your Honour, that the expression

"and those who decided at their ultimate cost to take a harder line" puts it much too high in the

circumstances which we have put to Your Honours.

MASON CJ:  Yes. The Court will give its decision in this

matter at 2 o'clock.

AT 11.53 AM THE MATTER WAS ADJOURNED

UNTIL LATER THE SAME DAY

UPON RESUMING AT 2.01 PM:
MASON CJ:	The Court has come to the conclusion that these applications should be referred to a Full Bench of
five or seven Justices. That means they will come
before the Full Bench as applications for special leave to appeal, but the parties should be prepared
to argue the substance of the proposed appeals in each case.

It means that the applicants will need to give

attention to the proposed grounds of appeal because

it seems quite clear, certainly in the case of

Morgan, that the present proposed grounds of appeal

Mihailovic 8/10/93

do not adequately or correctly cover the matters

that are intended to be argued. In addition, the

parties should give attention to the sufficiency of

the materials to be placed before the Court. Quite

clearly, in the light of the discussion this

morning, the Court will need to have comprehensive

information before it as to the history of these
matters, when they came before the courts, what was

said to the courts when the matters were listed,

and any relevant documentation bearing on such

decisions as may have been made by the Director of

Public Prosecutions and his officers.

AT 2.03 PM THE MATTERS WERE ADJOURNED SINE DIE

Mihailovic 9 8/10/93